Nuclear Power Safety: Industry Concerns With Federal Whistleblower
Protection System (Letter Report, 09/02/97, GAO/HEHS-97-162).

Pursuant to a congressional request, GAO reviewed the nuclear power
industries' concerns with the federal whistleblower protection system,
focusing on: (1) how the Nuclear Regulation Commission (NRC) and the
Department of Labor have implemented federal processes to protect
whistleblowers; (2) whether Labor's rulings on protected activities have
had any effect on industry's ability to manage its workforce and comply
with NRC regulations; and (3) whether abuse of the federal whistleblower
protection system exists.

GAO noted that: (1) while industry officials have no disagreement with
the policy underlying the federal whistleblower protection system, some
say that the current NRC and Labor processes take too long to complete,
are redundant, consume large amounts of managers' time and other
resources, interfere with effective management, and are often used to
resolve issues only marginally related to nuclear safety; (2) GAO's
March 1997 report noted that many of these issues have previously been
raised and that corrective actions are under way to improve several of
these areas; (3) however, some industry officials believe that few of
these actions will help solve the problems that they have with the
system; (4) these officials also say that some of Labor's rulings during
the 1990s broadened whistleblower protections and undermined industry's
confidence in the system's ability to resolve issues fairly for
employers; (5) abuse of the whistleblower protection system, officials
claim, takes the form of employees'; (a) making discrimination
allegations, some of which are completely frivolous, and using their
"protected" status to insulate themselves from personnel actions, such
as negative performance evaluations or reassignments; or (b) threatening
to file discrimination allegations to avoid or delay layoffs, negotiate
buyouts, or receive other financial settlements; (7) however, while they
are concerned about the burdensome and costly processes that result from
such abuse, neither the industry officials GAO interviewed nor the
Nuclear Energy Institute had information on the extent of such abuse or
believe that such data could be collected; (8) industry officials'
suggestions to improve whistleblower protection emphasized holding in
abeyance NRC action to investigate or engage in enforcement action based
on whistleblower claims until Labor has completed its investigations and
issued a final ruling; (9) however, as a result of their perceptions
about the processes and Labor's rulings, as well as their view that
little is likely to change in their favor, industry officials say they
become increasingly inclined to avoid the federal system and settle
complaints before the issues are made known outside the plant or to
settle the cases early in the federal whistleblower protection
processes; (10) officials from NRC and Labor, however, did not agree
with these industry comments and viewed their agencies as acting
appropriately and within their authority; and (11) neither agency
accepted the assertion by some industry officials that the whistleblower
protection system is plagued by abuse.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  HEHS-97-162
     TITLE:  Nuclear Power Safety: Industry Concerns With Federal 
             Whistleblower Protection System
      DATE:  09/02/97
   SUBJECT:  Whistleblowers
             Nuclear powerplant safety
             Labor-management relations
             Interagency relations
             Administrative remedies
             Ethical conduct
             Investigations by federal agencies
             Program abuses
             Employment discrimination
             Occupational safety
IDENTIFIER:  NRC Allegation Management System
             
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Cover
================================================================ COVER


Report to the Chairman, Subcommittee on Oversight and Investigations,
Committee on Commerce, House of Representatives

September 1997

NUCLEAR POWER SAFETY - INDUSTRY
CONCERNS WITH FEDERAL
WHISTLEBLOWER PROTECTION SYSTEM

GAO/HEHS-97-162

Nuclear Power Safety

(205326)


Abbreviations
=============================================================== ABBREV

  ADR - alternative dispute resolution
  AEA - Atomic Energy Act
  ALJ - administrative law judge
  ARB - Administrative Review Board
  ERA - Energy Reorganization Act
  NEI - Nuclear Energy Institute
  NRC - Nuclear Regulatory Commission
  OALJ - Office of Administrative Law Judges
  OI - Office of Investigations
  OIG - Office of Inspector General
  OSHA - Occupational Safety and Health Administration

Letter
=============================================================== LETTER


B-275364

September 2, 1997

The Honorable Joe Barton
Chairman, Subcommittee on Oversight
 and Investigations
Committee on Commerce
House of Representatives

Dear Mr.  Chairman: 

Few issues have so engaged the attention of nuclear industry
regulators and industry officials as the operation of the federal
system to protect employees who raise safety concerns.  The actions
that a utility takes in response to employee concerns affect its
reputation with regulators, which, in turn, influences the amount of
trust that regulators afford the utility when employee allegations
are made against it.  This is especially true for a utility that is a
regulated organization licensed to operate a nuclear reactor--a
"licensee." The Nuclear Regulatory Commission (NRC), as the
government agency responsible for the regulation of the nuclear power
industry, asserts that establishing and maintaining a
safety-conscious work environment that encourages employees to
identify and help resolve concerns is crucial for maintaining plant
safety. 

Protection processes were established within NRC and the Department
of Labor to encourage nuclear industry employees to raise safety
concerns with their employers or with NRC or others without fear of
discrimination.  Section 211 (formerly section 210) of the Energy
Reorganization Act of 1974 (ERA), as amended (42 U.S.C.  5851), makes
it unlawful for an employer to discriminate against an employee who
has "blown the whistle" by engaging in one or more "protected
activities" related to reporting safety concerns.\1

Some members of the Congress recently expressed concern that the
laws, as implemented by NRC and Labor, have not adequately protected
nuclear power industry workers who raise health and safety issues. 
Our report entitled Nuclear Employee Safety Concerns:  Allegation
System Offers Better Protection, but Important Issues Remain
(GAO/HEHS-97-51, Mar.  31, 1997) detailed recent actions NRC and
Labor have taken to strengthen whistleblower protection and reviewed
other recommendations made by an NRC review team that, if
implemented, might further improve the system.  However, that study
did not include a discussion of how these changes and proposals for
additional change have been received by the nuclear power industry. 
Industry officials point out that this recent concern for
whistleblowers comes at a time when (1) competitive pressures may
lead to workforce changes that have historically resulted in an
increase in whistleblower allegations, (2) industry managers perceive
both increased regulatory pressure on licensees and broadened
protections for whistleblowers, and (3) industry believes it has
succeeded in developing and maintaining an effective safety culture. 

Given your concerns about the tension between providing adequate
protections for whistleblowers and not overburdening industry with a
system that intrudes upon industry's ability to manage its
operations, you asked us to obtain the perspective of nuclear
industry officials on

  -- how NRC and Labor have implemented federal processes to protect
     whistleblowers,

  -- whether Labor's rulings on protected activities have had any
     effect on industry's ability to manage its workforce and comply
     with NRC regulations, and

  -- whether abuse of the federal whistleblower protection system
     exists. 

To respond to your request, we interviewed industry and federal
government officials and asked for their views about the
whistleblower protection processes and selected rulings made by the
Secretary of Labor.  We interviewed NRC officials, officials from
Labor's Administrative Review Board (ARB), Labor administrative law
judges (ALJ), selected licensee managers, attorneys for industry
licensees and employees, and advocates for licensees and the nuclear
power industry.  We reviewed recent Labor rulings related to
whistleblower complaints, pertinent sections of the ERA and other
statutes, the Code of Federal Regulations, and NRC's and Labor's
guidance and policy directives on whistleblower investigations and
other processes. 

To determine which industry officials to interview, we discussed the
areas of concern with representatives of the Nuclear Energy Institute
(NEI), an industry organization whose members include the chief
executives of the nation's nuclear power companies, and with
attorneys with experience in defending companies in whistleblower
cases.\2 We specifically sought licensees that had been parties to
significant rulings by the Secretary of Labor and asked industry
representatives to suggest other industry sources who might want to
provide comments.  From these discussions, we chose industry
officials that represent from 52 of the 110 generating units that use
nuclear power to produce electricity in the United States today,
including licensees involved in whistleblower cases decided by the
Secretary of Labor from 1992 to 1996.  (See app.  I for details of
our scope and methodology and app.  II for the list of licensees we
interviewed.)


--------------------
\1 The terms "blowing the whistle" and "whistleblower" are used
throughout the industry to refer to voicing a safety concern or
alleging a safety problem.  The six specific protected activities
listed in the act are notifying an employer of an alleged violation
of the ERA or the 1954 Atomic Energy Act (AEA); refusing to engage in
any practice made unlawful by the ERA or AEA if the employee has
identified the alleged illegality to the employer; testifying before
the Congress or at any federal or state proceeding regarding any
provision or proposed provision of the ERA or AEA; commencing a
proceeding under the ERA or AEA or a proceeding for the
administration or enforcement of any requirement imposed under those
acts; testifying or being about to testify in such proceedings; or
assisting or participating in any other manner in such a proceeding
or in any other action to carry out the purposes of the ERA or AEA. 

\2 We interviewed individuals in a variety of occupations--managers
and lawyers primarily--however, in this report we use the terms
"official" and "officials," unless otherwise noted. 


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :1

While industry officials have no disagreement with the policy
underlying the federal whistleblower protection system, some say that
the current NRC and Labor processes take too long to complete, are
redundant, consume large amounts of managers' time and other
resources, interfere with effective management, and are often used to
resolve issues only marginally related to nuclear safety.  Those
officials are most concerned about the overlapping actions of NRC and
Labor in the whistleblower protection system, which they believe
contribute to lengthy and unnecessarily contentious proceedings.  Our
March 1997 report noted that many of these issues have previously
been raised and that corrective actions are under way to improve
several of these areas.  However, some industry officials believe
that few of these actions will help solve the problems that they have
with the system. 

These officials also say that some of Labor's rulings during the
1990s broadened whistleblower protections and undermined industry's
confidence in the system's ability to resolve issues fairly for
employers.  Officials claim that Labor's decisions have expanded the
definition of "protected activities" so much that management now has
difficulty performing actions such as employee reassignments or
downsizing.  Industry officials say that complying with NRC
regulations has been complicated by Labor's enlargement of protected
activity.  For an example of an activity that Labor has deemed
"protected," industry officials cited a ruling that allows employees
to withhold their safety concerns from management and instead report
safety concerns directly to the media or to NRC rather than going
through the plant's management. 

Abuse of the whistleblower protection system, officials claim, takes
the form of employees' (1) making discrimination allegations, some of
which are completely frivolous, and using their "protected" status to
insulate themselves from personnel actions, such as negative
performance evaluations or reassignments, or (2) threatening to file
discrimination allegations to avoid or delay layoffs, negotiate
buyouts, or receive other financial settlements.  However, while they
are concerned about the burdensome and costly processes that result
from such abuse, neither the industry officials we interviewed nor
NEI had information on the extent of such abuse or believe that such
data could be collected.  Moreover, NEI officials questioned whether
it is possible to collect such data. 

Industry officials' suggestions to improve whistleblower protection
emphasized holding in abeyance NRC action to investigate or engage in
enforcement action based on whistleblower claims until Labor has
completed its investigations and issued a final ruling.  In addition,
industry officials suggest setting time limits for NRC and Labor
actions and final decisions, penalizing employees who pursue
frivolous allegations beyond the initial stages, and using
alternative dispute resolution (ADR) options when the allegations do
not appear to involve significant safety issues.  Industry officials
also say that NRC and Labor should clearly define "protected
activities" in the public record.  However, as a result of their
perceptions about the processes and Labor's rulings, as well as their
view that little is likely to change in their favor, the industry
officials say they have become increasingly inclined to avoid the
federal system and settle complaints before the issues are made known
outside the plant or to settle the cases early in the federal
whistleblower protection processes. 

Officials from NRC and Labor, however, did not agree with these
industry comments and viewed their agencies as acting appropriately
and within their authority.  NRC and Labor officials also said that
the whistleblower protection system ensures that employees feel free
to raise safety concerns to both management and NRC and promotes a
work environment that is crucial for maintaining safety in the
nuclear industry.  Neither agency accepted the assertion by some
industry officials that the whistleblower protection system is
plagued by abuse. 


   BACKGROUND
------------------------------------------------------------ Letter :2

In 1977, NRC took the position that, even in the absence of explicit
statutory authority, (1) it had general authority under AEA to
investigate alleged discrimination against employees for raising
safety concerns and (2) it had authority to take enforcement action
when discrimination allegations were substantiated.  NRC also took
the position, however, that it lacked authority to provide
individuals with personal remedy for the discrimination.  In 1978,
the Congress passed section 210 (now section 211) of the ERA, which
granted such authority to the Department of Labor.\3 In 1982, NRC
issued regulations consistent with section 210 that prohibited
licensees and their contractors from discriminating against employees
for raising concerns.  In that year, NRC also entered into a
memorandum of understanding with Labor on the complementary
responsibilities of the two agencies.  Since then, NRC and Labor have
shared responsibility for investigating discrimination allegations. 

In 1992 and 1993, in response to complaints by employees who claimed
they were not being protected from discrimination, NRC initiated
reviews of the employee protection system.  In a January 1994 report,
an NRC review team concluded that the existing NRC and Labor
processes, as then implemented, did not sufficiently protect
employees who had alleged discrimination.  The team recommended a
series of improvements to the protection system.  Our recent report
summarizes the current status of actions taken on these
recommendations.  Industry officials, however, do not believe that
NRC produced evidence of a problem with the industry safety culture
and expressed frustration that what they see as a few isolated cases
drives NRC to greater regulatory action. 


--------------------
\3 The legislative history for section 210 also confirmed NRC's
authority under the AEA. 


      RECENT DEVELOPMENTS
---------------------------------------------------------- Letter :2.1

Other events have also affected the nuclear power industry.  The
Energy Policy Act of 1992 included provisions to allow competition at
the wholesale level in electricity generation.  Since this law was
enacted, actions for the economic deregulation of retail power
markets have also taken place.  Structural changes and economic
uncertainties driven by regulatory and market forces have also
affected the nuclear industry.  The number of nuclear power units
operating or under construction has decreased.  Employment in the
industry has declined. 

Because of these changes to the business environment, NRC has raised
as an issue the possibility of the erosion of nuclear safety
throughout the industry.  Pressures for nuclear plants to become
low-cost energy producers and the potentially limited resources
available for plant improvements have been identified as reasons for
concern about possible reductions in nuclear safety.  NRC has made
known its concern about failure by industry management to identify or
resolve problems that management may incorrectly view as having
little safety significance.  Because NRC relies on licensees and
their employees to identify and resolve workplace safety concerns, it
believes that licensees must maintain an environment in which the
employees are encouraged to freely raise these concerns without fear
of reprisal.  Consequently, the issue of whistleblowers and their
protection has become increasingly important. 

Industry officials are aware of concerns about upcoming restructuring
and deregulation of the electric utility industry but stated that
they will not affect licensees' ability to address safety concerns. 
Industry representatives are concerned, however, that if additional
downsizings and other industry reorganizations occur, an increase in
discrimination complaints is likely to follow.  Consequently, the
federal processes associated with an increase in cases will divert
finite management resources and thus may create additional pressure
in a competitive environment. 

In our March 1997 report on nuclear safety concerns, we reviewed the
joint NRC-Labor process for action on allegations of discrimination. 
Our report concluded that NRC and Labor have acted on some NRC and
Office of Inspector General (OIG) recommendations to enhance their
management of nuclear employee discrimination cases and that the
resulting changes should improve monitoring of the process, increase
NRC involvement, and augment licensees' responsiveness to employee
concerns.  However, we also concluded that other recommendations that
could be made that would further improve the system had not been
implemented and that better coordination and commitment from both NRC
and Labor would be required to do so.  We recommended that Labor
establish and attempt to meet realistic time periods for
investigating complaints.  We recommended that NRC improve its
monitoring of the allegation process and its coordination with Labor. 
Finally, we recommended that NRC implement methods to obtain
information on the environment for reporting safety issues in nuclear
plants. 


      SYSTEM FOR PROTECTING
      EMPLOYEES INVOLVES TWO
      AGENCIES
---------------------------------------------------------- Letter :2.2

Although the management of a nuclear power plant charged with
discrimination faces two agencies investigating the same allegation,
the agencies have different purposes for their investigations.  While
Labor supports plant safety indirectly by providing personal remedies
to industry employees who have been discriminated against for raising
safety allegations, NRC has direct responsibility for ensuring that
nuclear plants operate safely. 

In 1982, when the whistleblower protection system was in its early
stages, NRC and Labor entered into a memorandum of understanding in
which they agreed to carry out their responsibilities independently
but to cooperate and exchange timely information in areas of mutual
interest.  Labor agreed to promptly provide NRC copies of ERA
complaints, decisions, and orders associated with investigations and
hearings on such complaints.  NRC agreed to assist Labor in obtaining
access to licensee facilities.  Working arrangements initially
formulated to implement the memorandum also specified that NRC would
not normally initiate an investigation of a complaint if Labor was
already investigating it or had completed an investigation and found
no violations.  If Labor found a violation, NRC would consider
Labor's actions before deciding what enforcement action, if any, to
take. 

Prior to October 1993, NRC had investigated relatively few
discrimination complaints and usually waited for the Labor
Secretary's final decision, which generally took longer than an NRC
investigation.  In October 1993, NRC investigations' policy was
changed to require that field offices open a case and conduct an
evaluation of all matters involving discrimination complaints
regardless of Labor's involvement.  In April 1996, NRC better focused
resources on high-priority discrimination cases.  Currently, 55
percent of NRC's Office of Investigations (OI) workload consists of
investigating whistleblower discrimination allegations.  However, in
96 of the 106 discrimination cases closed by OI in fiscal year 1996,
no discrimination was found. 


      NRC'S RESPONSE TO A
      DISCRIMINATION ALLEGATION
---------------------------------------------------------- Letter :2.3

When NRC staff receive a discrimination allegation, they conduct a
review to determine (1) whether the allegation has safety
implications and (2) the level in the organization of the alleged
discriminator.  However, NRC staff generally do not inform plant
management of the specific nature of their concerns.  NRC staff also
assess the priority of the discrimination allegation.  If NRC
determines, on the basis of an OI investigation, that a violation
occurred, or if an adjudicatory determination of discrimination is
received from Labor, NRC's Office of Enforcement assesses the case in
accordance with its enforcement policy, which defines four levels of
severity, and advises on the appropriate sanction, if any. 

If Labor ultimately finds that the employer has unlawfully
discriminated against an employee, it may, under the ERA, order the
employer to make restitution.  Restitution can include reinstating
employees to their former position and providing back pay and
possibly other compensation.  If NRC finds unlawful discrimination,
based on either an investigation by Labor or an NRC investigation,
NRC may (1) serve upon the company a notice of violation that
identifies one or more violations of a legally binding requirement,
(2) fine the licensee, or (3) have the company's license to operate a
nuclear plant suspended, modified, or revoked.  Industry officials
pointed out that in lodging a confidential discrimination complaint,
the employee making the allegation incurs neither expense nor risk. 
If neither agency finds discrimination or finds that the complaint
was entirely frivolous, the person making the allegation suffers no
financial loss or other adverse consequences. 

One factor NRC uses to determine severity is whether a hostile work
environment existed; another is the organizational position of the
offender identified in the whistleblower case.  Discrimination
violations by senior corporate management are level I and are
punishable by fines of up to $110,000 per day.  Violations by a
first-line supervisor are level III and carry lower fines.  Civil
actions, as well as criminal referrals to the Department of Justice
for prosecution of individual managers, are possible. 


      LABOR'S ACTIONS TO PROTECT
      WHISTLEBLOWERS
---------------------------------------------------------- Letter :2.4

Labor's actions to investigate whistleblower complaints made by
nuclear industry employees are much like those it takes to protect
employees in industries covered by other whistleblower legislation.\4
Labor's role in ERA discrimination cases consists of (1) an
investigation by the Occupational Safety and Health Administration
(OSHA);\5 (2) a hearing before an ALJ if the OSHA determination is
appealed; (3) a review of the recommended decision by the ARB, which
issues the Secretary of Labor's final decision;\6 and (4) a review of
the settlement, if there is one.  Settlements are often made to
minimize the cost and time of continuing a case for both the employee
and licensee and may occur at any point. 

Neither Labor's ARB nor the ALJs view nuclear whistleblower cases or
issues as being unique or having special circumstances.  According to
Labor's chief judge, the Office of Administrative Law Judges (OALJ)
generally treats all whistleblower cases similarly.  He also
emphasized that nuclear and environmental cases are governed by the
same procedural regulations.  In addition, in making decisions for
nuclear industry whistleblower cases, ALJs rely on precedents
established in whistleblower cases decided under other laws that
regulate other industries.  However, in considering ERA whistleblower
cases, ALJs generally do not consult with NRC staff. 

All ALJ decisions in whistleblower cases are rendered in the form of
recommendations, which must be reviewed by the Secretary of Labor or
designee (since 1996, the ARB).  There is a statutory 90-day limit
from when a complaint is filed until Labor renders its decision.\7
The ARB has worked to clear up a backlog of cases and told us that it
attempts to provide a timely decision in all cases.  Either party
dissatisfied with the ARB's decision may appeal the final Labor
ruling to the appropriate federal circuit court of appeals within 60
days. 


--------------------
\4 Along with the Energy Reorganization Act, 42 U.S.C.  section 5821,
other laws containing whistleblower protections include Clean Air
Act, 42 U.S.C.  7622; Comprehensive Environmental
Response--Compensation and Liability Act of 1980, 42 U.S.C.  9610;
Federal Water Pollution Control Act, 33 U.S.C.  1367 and 1369; Safe
Drinking Water Act, 42 U.S.C.  300j9; Solid Waste Disposal Act, 4
U.S.C.  6971; Surface Transportation Assistance Act, 49 U.S.C. 
31105; Surface Transportation Assistance Act of 1982, 49 U.S.C.  app. 
2305; and Toxic Substances Control Act, 15 U.S.C.  2622. 

\5 Until February 1997, this responsibility was assigned to Labor's
Wage and Hour Division.  It was transferred to OSHA as part of an
exchange of responsibilities to better use program expertise and
resources. 

\6 Until early 1996, ALJ recommended decisions were reviewed by the
Office of Administrative Appeals, and the final decision was signed
by the Secretary.  Since then, the final decision has been signed for
the Secretary by the Chair of the ARB. 

\7 In our March 1997 report, we note that this statutory limit is
rarely met and is considered to be unreasonable by officials at NRC
and Labor. 


   MANAGERS' CONCERNS WITH FEDERAL
   PROCESSES THAT PROTECT
   WHISTLEBLOWERS
------------------------------------------------------------ Letter :3

Industry officials expressed varied opinions about whether both NRC
and Labor should continue to be involved in protection and what role
each agency should play.  The perspectives expressed about the
processes, case outcomes, and potential for abuse appeared to depend
largely on whether the licensee had recent experience in dealing with
whistleblowers and the processes.  Generally, officials without
recent experience in whistleblower cases expressed few concerns and
showed a reluctance to make comments.  None of the industry officials
we interviewed who had recent contact with the federal processes was
satisfied with them as they are being currently carried out.  The
officials said they believed too much time is allowed to elapse
before reaching a final determination on cases.  They were also
concerned about redundant and overlapping investigations, intrusion
into management processes, contradictory messages from NRC, NRC's
interpretation and use of industry data, and the effect of
whistleblower complaints on NRC's perception of a utility's overall
nuclear operations and safety environment. 

Industry officials we interviewed pointed out that before either NRC
or Labor becomes involved in the formal federal processes, several
in-plant options are available for employees to report safety
concerns.  Among these options are the front-line manager, middle
managers, and upper management, as well as employee concerns
programs, personnel offices, and anonymous reporting mechanisms,
including hotlines and suggestion boxes.  Officials told us that
these mechanisms are used to resolve thousands of concerns
industrywide each year and that the cases litigated represent a
minute fraction of the total number of concerns raised within the
industry. 

In addition, officials told us that concerned employees who are not
comfortable with these reporting alternatives are urged to report
directly to NRC.  NRC, however, generally prefers that employees
inform their management of safety issues directly.  Nevertheless, the
NRC's expectation that employees will normally raise safety concerns
to their employer does not mean that employees cannot come directly
to NRC.  NRC policy encourages employees to come forward to NRC at
any time they believe NRC officials should be aware of their
concerns. 


      INDUSTRY OPINIONS VARIED
      WIDELY ON NRC AND LABOR
      ROLES
---------------------------------------------------------- Letter :3.1

Industry managers and legal representatives expressed widely varying
opinions about whether two federal agencies should continue to be
involved in the whistleblower protection processes with overlapping
responsibilities and which agency should have full responsibility. 
Some officials said they believe that Labor staff cannot make
adequate decisions about the nuclear whistleblowers because they do
not understand the safety context and technical environment of the
nuclear industry.  They criticized Labor staff for not actively
consulting during their investigations with NRC resident inspectors
or other staff to better understand technical issues and the
regulatory context of nuclear plant operations. 

Industry officials also told us that Labor staff do not fully
appreciate the safety implications that the Secretary's rulings may
have on nuclear power operations.  Some argued that the Secretary's
rulings about public policy protections of whistleblowers have moved
beyond Labor's area of expertise (employees' restitution) and have
affected technical areas.  Some officials said that it would be
easier for technically trained engineers to learn about employment
law than for Labor staff to understand the highly technical,
scientific, and closely regulated environment of a nuclear power
generating facility. 

Other industry officials, however, fully acknowledge Labor's
expertise in human resource and labor law issues.  They see
whistleblower protection as being fundamentally about individual
disputes and personal remedies and correctly within Labor's purview. 
Labor's processes of adjudication before the ALJ, with the
opportunity for discovery and cross-examination, are especially
viewed as positive attributes of the system.  Industry officials
contrasted Labor's adjudication process with their perceptions of the
closed NRC system under which investigations are conducted.  They
also voiced strong concerns about what they describe as a hostile and
accusatory law enforcement attitude that NRC OI investigators often
exhibit. 

Industry legal representatives raised concerns about the threat of
"criminality" that NRC brings into the discrimination investigation
process.  Some industry attorneys contended that NRC's basis for
threatening criminal prosecution related to these cases relies on an
expansive interpretation of NRC's authority under the AEA.\8 Industry
attorneys also believe that because NRC's investigations can result
in a civil penalty and possibly a criminal referral, NRC should
interpret its discrimination regulation more narrowly than Labor
interprets section 211, an employment discrimination statute, which
provides only civil penalties.  Thus, they believe that NRC unfairly
bases potential criminal action on the outcome of a civil proceeding. 

Industry officials also told us that NRC has attempted to expand its
activity into Labor's area of responsibility by proposing a personal
remedy such as a holding period (whereby an action against an
employee who alleges discrimination would be held in abeyance until
the complaint has been fully investigated) in its discussion of
possible regulatory changes.  These legal representatives are
concerned as well that NRC attempted to overstep its authority by
attempting to tell nuclear management how it should behave in
developing and maintaining a safety-conscious environment. 


--------------------
\8 In its comments, NRC noted that the Department of Justice agrees
with NRC's interpretation of its authority.  We did not verify this
assertion attributed to Justice. 


      SPECIFIC CONCERNS WITH
      PROCESSES
---------------------------------------------------------- Letter :3.2

Industry officials commented about the specific problems they
encountered with the current federal processes, as well as the use of
the processes in general.  Specific issues of concern were that the
processes take too long, are redundant, interfere with management
actions, and are often used to resolve issues unrelated to safety. 
Officials are also concerned about NRC's possibly inappropriate use
of allegation data and heightened enforcement posture.  Several of
these issues have been raised in prior NRC studies, and steps have
been taken or are being considered to respond to them.  In our March
1997 report, we reviewed actions NRC and Labor took in response to
various review teams' suggestions.  We made several recommendations
on actions that NRC and Labor could take to improve the processes,
timeliness, quality of information, and overall knowledge of the work
environment.  Industry officials in general, however, did not believe
that the changes recently made or proposed would improve the
processes much.  They said that most of the changes do not take into
account the industry point of view. 


         PROCESSES BELIEVED TO
         TAKE TOO LONG
-------------------------------------------------------- Letter :3.2.1

Managers in the nuclear power industry recently involved with the
federal processes to protect whistleblowers complained about the
extensive time needed to complete investigations at each step.  They
also complained about the significant amounts of managers' effort and
company resources expended in defending themselves through the
multiple processes.  As we previously reported, according to our
analysis of cases from October 1, 1993, to June 30, 1996, the average
time needed to reach a determination at the first stage of the
process (a Labor Wage and Hour or OSHA investigation) was 4 months,
and few cases met the 30-day completion time included in the law.\9
During that same period, the average time required from the first
assignment of a case to an ALJ, until a final ruling was rendered by
the Secretary, took about 2.5 years. 

NRC and Labor agreed that reducing the time to resolve nuclear
whistleblower cases would be good for all, and the average times have
been reduced somewhat.  In discussing the recommendation mentioned in
our earlier report concerning limiting the time period of a case to a
total of 480 days (and limiting the Secretary of Labor to 90 days to
issue a final decision), the chair of the ARB repeated his concern
that a 90-day timeliness standard was unrealistic because it would
severely affect the parties' ability to file all the necessary legal
briefs.  He said that meeting this standard would cause Labor to
severely restrict the parties' ability to properly respond to the
issues presented.  Labor's chief administrative law judge commented
that while OALJ is not opposed to realistic time standards, his
experience was that few complainants or employers were prepared for
early hearing dates and that requests for continuances were the rule
rather than the exception.  NRC staff said that they are continuing
to discuss timeliness issues with Labor. 


--------------------
\9 GAO/HEHS-97-51, Mar.  31, 1997, pp.  17-18. 


         PROCESSES DESCRIBED AS
         REDUNDANT
-------------------------------------------------------- Letter :3.2.2

The existing federal process involves several steps with actions by
multiple agencies, which industry sees as redundant.  By regulation,
OSHA must complete an initial investigation within 30 days; however,
the time is almost always extended through a waiver requested by the
complainant or the licensee.  In addition, NRC may conduct a
technical review dealing with the safety issues raised and a
full-scale OI investigation, which may review the same whistleblower
allegation received by OSHA.  If either party disagrees with the OSHA
decision, it may appeal to Labor's OALJ within 5 calendar days.  An
appeal sets aside the results of the investigation and initiates a
new investigation at the ALJ level. 

Industry officials told us that they are in favor of bringing
allegations to a close and desire early settlement of the issues. 
However, in instances in which settlement is not reached, industry
sees multiple investigations by different organizations that do not
share information as inherently inefficient and as consuming licensee
management resources unnecessarily.  In addition, industry officials
stated that when an appeal to the ALJ is requested by either party,
the current practice of discarding the OSHA investigation results is
wasteful and adds considerable time to resolving allegations.  Even
when OSHA investigations and OALJ adjudications do not find
discrimination, the Secretary of Labor, through the ARB, may
determine that it did occur, causing NRC staff to review the case. 
Finally, even if a case is settled before a decision by the ARB,
NRC's OI may initiate its own investigation. 

NRC and Labor officials said they understand the frustration that
industry feels because of multiple investigations.  The chair of the
ARB suggested that a review of the first stage of the process may be
in order to determine whether the OSHA investigation phase led to
settlements of cases.  NRC staff said that they believed the initial
investigations resulted in a large number of settlements.  (Our
analysis of cases investigated while Labor's Wage and Hour staff were
responsible for the initial investigation (before February 3, 1997)
showed a settlement rate of about 16 percent of cases.) NRC staff
added that doing away with the initial Labor investigations would
increase NRC's workload.  NRC currently uses an OSHA finding of
discrimination as a starting point for NRC's dialogue with a licensee
over corrective action and also considers the evidence gathered by
OSHA during the course of OI's investigation. 


         PROCESSES SAID TO
         INTERFERE WITH EFFECTIVE
         MANAGEMENT
-------------------------------------------------------- Letter :3.2.3

Many of the managers we interviewed said that the whistleblower
protection process interfered with their ability to perform
management functions related to those making allegations and their
other staff in a timely manner.  Managers told us how they were
forced to delay decisions on normal supervisory actions because of
the consultation necessary in a whistleblower case.  Some managers
who have been involved with the processes referred to the
consultations as excessive and gave examples of how they were advised
to confer with higher levels of management, human resources or
personnel units, and the plant's or the parent utility's legal staff
before taking supervisory action.  Managers complained that in some
situations the extra consultations necessary have created a window of
vulnerability in which the plant could be exposed to more potential
problems from employees whose fitness for duty might be questioned
than would have been the case previously, when swift action without
consultation was the norm. 

Most of the industry managers we talked to believed few of the
discrimination allegations were legitimate.  However, because of fear
for their careers, and because the Department of Justice can hold
them criminally accountable for actions deemed to be discriminatory,
nuclear industry managers said that they must take all the
allegations seriously and respond to them accordingly.  Higher-level
managers said that the delays associated with processing allegations
that do not warrant investigation particularly demoralize managers
who come from a command and control environment.  They said such
delays also decrease plant efficiency and extend the time needed to
resolve employees' concerns. 

Industry officials also cited examples of how managers become
frustrated in dealing with individuals making allegations who have an
adversarial relationship with management and how other workers
perceive that the whistleblower receives special treatment.  Managers
at one licensee told us of how one very public person bringing an
allegation in a maintenance job was assigned to a favorable "desk
job" to guard against further charges of retaliation and that
coworkers were unhappy that he was receiving this opportunity and
they were not. 

Industry officials also told us of how managers were sometimes
puzzled about how to behave because of the lack of feedback from
NRC's OI on its investigation activities.  Several licensees
commented about OI staff not communicating to the target of a
harassment and intimidation allegation when review of the case found
insufficient evidence to support the discrimination allegation.  This
failure to notify left the accused managers in a state of anxiety for
lengthy periods, sometimes for years.  Officials told us this failure
to communicate is especially worrisome because managers could not be
sure whether their past actions were appropriate or not.  Managers
were also concerned because the OI investigators made reference to
possible criminal, in addition to civil, charges with possible
referrals to Justice for prosecution. 

Industry officials also said the stigma of being accused in a
whistleblower case severely harms the reputation of individual
managers and the company.  Managers and legal representatives said
they were also concerned about the negative publicity created by
NRC's issuance of a press release with a notice of violation in these
cases.  Further, industry officials claim that the damage to an
accused individual manager's reputation cannot be undone even if the
notice of violation is rescinded. 

NRC staff acknowledged that the time to complete investigations could
be rather lengthy.  They also agreed that they did not ordinarily
provide closure letters to each individual investigated.  They
stated, however, that letters signaling the closure of an
investigation are always sent to the licensee, with the expectation
that licensee management will inform all concerned employees that the
case had been closed.  Furthermore, they also told us that while they
do have the authority to refer cases to Justice for consideration of
criminal prosecution, such prosecution has occurred only once. 


      INDUSTRY OFFICIALS BELIEVE
      THAT THEY GET CONTRADICTORY
      MESSAGES FROM NRC
---------------------------------------------------------- Letter :3.3

Industry officials we interviewed said that NRC often gives
contradictory messages in its actions and guidance relative to
handling whistleblower allegations.  Officials said NRC often acts on
a finding of discrimination by Labor, even when that finding
contradicts the results of NRC's own preliminary investigations by
on-site teams.  Managers also said that, on occasion, NRC enforcement
actions have ignored actions previously taken by the plant management
to correct conditions that led to the safety allegations and
subsequent discrimination allegations.  As a consequence, officials
said that managers feel second-guessed, new managers may be penalized
for improper actions taken by prior managers, and the public may
perceive that problems that have been corrected still exist. 
Industry officials would like to see NRC publicly acknowledge actions
that managers have taken to resolve issues and to see NRC take these
corrective actions into account when making enforcement announcements
to the media. 

Nuclear officials also told us that NRC encourages upper management
participation in whistleblower-related situations, but when
upper-level management becomes involved in resolving a case, the
plant risks increased NRC sanctions if discrimination is found. 
Under NRC's enforcement procedures, the level of the decisionmaker is
considered in determining the severity of the enforcement action. 
Therefore, upper-level managers who become involved in these cases to
protect lower managers and ensure that whistleblower situations
receive the high-level management attention that NRC encourages make
themselves and the plant vulnerable to more severe penalties than if
they had not become involved. 

NEI commented on what it characterized as the extremeness of NRC's
enforcement approach by comparing NRC's enforcement policy provisions
relating to discrimination with other enforcement provisions relating
to reactor operations.  Industry representatives pointed out that in
the context of reactor operations, a Level I civil penalty applies if
a radiological release occurs (as at Three Mile Island).  They said
they thought it is unreasonable to treat a discrimination finding
against a senior member of licensee management with as severe a
penalty as would be given with a radiological release. 

Although NRC officials disagreed that they automatically act on
Labor's decision even if it contradicts their own findings, they did
acknowledge that, in almost every case, NRC has adopted the final
position of Labor when initiating its enforcement actions.  NRC staff
said that they review each of Labor's decisions but that without any
compelling reason, they do not independently examine the evidence
supporting Labor's findings.  NRC officials note that while NRC can
base its enforcement decisions on Labor's rulings, it is not required
to do so.  NRC staff gave examples of two cases in which they have
refrained from taking action, despite an ALJ or ARB finding of
discrimination. 

NRC staff also said that confusion about NRC processes could
contribute to impressions that NRC actions are contradictory.  The OI
Director explained that preliminary technical reviews of issues
related to discrimination allegations are often handled by resident
inspectors or NRC regional staff who focus primarily on the safety
issues associated with an allegation, not on the alleged
discriminatory conduct of the managers.  Investigations of the
discrimination allegation by OI investigative staff can result in
conclusions about allegations different from those conducted during
the preliminary technical review.  Also, the Director of the Office
of Enforcement acknowledged that long periods of time often passed
and that managers changed between original discrimination incidents
and enforcement actions.  However, he said improper conduct by the
company may be dealt with through enforcement actions, even though
NRC acknowledged that new managers were in place and changes had been
made.\10


--------------------
\10 The Director of the Office of Enforcement added that if new
management acted promptly to settle the matter, this would likely be
reflected in the enforcement action, if any. 


      MANAGERS QUESTION DATA NRC
      USES
---------------------------------------------------------- Letter :3.4

Managers expressed concern about the allegation data that NRC
collects, uses, and publishes to indicate the safety conditions at
specific nuclear plants.  They believe that the data on safety
allegations can be taken out of context and are open to a variety of
interpretations.  For example, data showing a large number of issues
and allegations outstanding could indicate problems at a plant or
with its management culture.  Conversely, the same data could be
interpreted to show that employees feel free to raise safety
concerns, and this is precisely the environment that NRC wants to
encourage.  Industry officials expressed particular concern about
NRC's February 27, 1997, Federal Register notice, "Safety Conscious
Work Environment."\11 The NRC notice requested comments on a proposal
that would use changes in the rate or number of allegations as
possible evidence of an emerging adverse trend concerning safety
consciousness at a facility.  Industry representatives were highly
critical of having the allegation data used in this way. 

In addition, officials told us that management-reported instances of
safety concerns are combined with allegations made by employees and
contractors in the data that NRC collects and publishes.  For these
reasons, industry managers said that they believe that NRC needs to
do additional work in its allegation data collection and analyses and
that they are wary of data-driven enforcement targeting until such a
review has been completed. 

NRC officials responded that numbers of allegations alone do not
drive the start of NRC investigations or enforcement actions and that
NRC's policy was not to use management-reported incidents against
them.  The Director of the Office of Enforcement said that NRC's goal
was not to take action against licensees but to create a
safety-conscious environment.  However, NRC acknowledged that in the
past it has combined management reports of safety concerns with
employee concerns, a practice that it plans to change.  NRC's agency
allegation adviser acknowledged that NRC could do more to explain to
industry how the data would (and would not be) used.  NRC officials
said that this explanation might be included as part of a planned
Federal Register notice. 


--------------------
\11 60 Fed.  Reg.  8790 (1997). 


      NRC'S REGULATORY POWER
      AFFECTS OFFICIALS' VIEWS ON
      WHISTLEBLOWER PROTECTION
      SYSTEM
---------------------------------------------------------- Letter :3.5

Industry officials' concerns about the whistleblower protection
process are heightened by NRC's regulatory power over licensees
regarding the total operation of nuclear plants.  Industry officials
said that they believe that NRC may take enforcement action against
any licensee when Labor finds discrimination, regardless of the
circumstances and even when technical safety issues are not at stake. 
They believe also that a series of whistleblower complaints,
regardless of their merit or outcome, may be interpreted as
indicating a pattern of problems that will lead NRC to investigate a
licensee's overall activities.  Even when no wrongdoing is found, the
investigations consume management resources, disrupt plant
operations, and may generate concern on the part of both consumers
and shareholders, to the point of threatening the continued viability
of the plant.  As a result, managers and legal representatives said
that by resolving the cases informally, they attempt to avoid
entering the federal whistleblower protection system. 

Some industry officials said that NRC in recent years has become
unjustifiably aggressive in pursuing allegations, even those that may
be questionable.  Some expressed concern that NRC has proposed that
licensees may be subject to regulatory action if employees merely
perceive that discrimination occurred.  Industry legal
representatives believe that the recent increased concern over
whistleblower allegations is a disproportionate response to the
relatively few high-profile cases that have received media attention. 
These officials also noted that what industry saw as proposed NRC
regulations on a safety-conscious workplace are vague and incapable
of being effectively implemented or objectively enforced. 

NEI officials were also highly critical of NRC's proposal to impose a
holding period whereby employees who allege discrimination would be
guaranteed full pay and benefits until the complaint has been fully
investigated.  Under current procedures, this could last at least
until an ALJ has heard the case and issued a recommended decision. 
Industry officials said this policy might provide an inducement for
some employees to file an allegation to protect themselves against
legitimate economically related personnel actions.  These concerns
are heightened by industry officials' expectations that economic
pressures stemming from deregulation will lead to additional
personnel actions such as job-shifting and downsizing and that the
environment that has led to numerous cases in which adverse actions
were based on economic reasons will continue for some time. 


   SECRETARY OF LABOR RULINGS
   CAUSE INDUSTRY CONCERN
------------------------------------------------------------ Letter :4

Industry representatives expressed concern about a number of rulings
the Secretary of Labor and the ARB have made on whistleblower cases
in the past several years, especially what they characterize as
significant reversals by the Secretary and the ARB of several
ALJ-recommended decisions that favored the industry.  They see these
rulings, which reversed the ALJs', as having broadened the employee
protection system, widened the definition of "protected activities,"
and interfered with management's ability to efficiently run nuclear
power plants. 


      SECRETARY REVERSED ALJ
      RECOMMENDATIONS
---------------------------------------------------------- Letter :4.1

Nuclear industry legal representatives told us that they monitor
Labor's final rulings in whistleblower cases very closely.  They find
that the percentage of Secretary of Labor or ARB reversals of
ALJ-recommended decisions is very high, especially where the ALJ
decisions had favored the industry rather than the whistleblower. 
The chair of Labor's ARB told us that he does not ordinarily "score"
its decisions or tabulate data on how cases were decided.  In order
to be able to assess the accuracy of industry's characterizations of
the Secretary's reversal decisions, we asked Labor to review its
decisions and categorize them. 

Appendix III summarizes the Secretary's rulings from January 1994
through March 1997.  According to Labor's analysis and our review,
over this period the ALJ's recommendation was in favor of the
licensee 44 times and in favor of the employee 7 times.  On review,
the Secretary affirmed ALJ recommendations 39 times, reversed the ALJ
in an employee's favor 11 times, and reversed the ALJ in a licensee's
favor 1 time.  The bulk of the decisions came in 1995 when Labor
issued a number of final decisions for cases that had been pending
for some period of time. 

In discussing rulings made in 1995, Labor and industry used different
totals.\12

Industry representatives initially maintained that in 1995, in the 38
cases in which the ALJ made a recommended decision to the Secretary
on the merits of a case, the Secretary affirmed the ALJ decisions 19
times and reversed the ALJ decisions 19 times (a 50-percent reversal
rate).  Labor's tabulation of the 1995 data shows that in that year
the Secretary affirmed ALJ recommendations 17 times, reversed the ALJ
in the employee's favor 6 times, and reversed the ALJ in the
licensee's favor 1 time.  In their comments on the draft report, NEI
staff reviewed their 1995 data and identified 42 decisions in which
the Secretary addressed substantive recommended decisions, affirming
decisions 28 times and rejecting recommended decisions 14 times (a
33-percent reversal rate). 

Industry attorneys alleged that the percentage of reversals in favor
of the employee was higher in nuclear whistleblower cases than in
whistleblower cases in other industries or in other federal agency
appellate processes.  We did not, however, obtain the data necessary
to confirm that statement.  In addition, Labor calculated that a
total of 95 settlements were approved and 5 settlements were rejected
over the period January 1994 to March 1997. 


--------------------
\12 Both Labor and NEI officials stressed that they were not counting
reversals made for procedural reasons (for example, whether or not
the case was filed on time) or other nonsubstantive reasons.  The
discrepancy in the total number of cases counted for 1995 may be
caused to some extent by how cases were classified as substantive or
nonsubstantive. 


      INDUSTRY HAS APPEALED FEW OF
      THE LABOR SECRETARY'S
      REVERSALS
---------------------------------------------------------- Letter :4.2

Either party may appeal an unfavorable decision to the court. 
Industry legal representatives whom we interviewed stated they had
appealed few of the Secretary's decisions.  In most cases, they did
not view such appeals to be a reliable avenue for relief from adverse
decisions because federal agency decisions are given great deference
by the courts.  They told us that their clients generally make a
business decision to either accept the Secretary's decision or settle
the case. 

NRC and Labor officials confirmed that the number of cases appealed
is small.  However, they reiterated to us that industry has the right
to appeal the rulings and that appeal processes are readily
available.  Neither the industry nor the agencies keep a count of ERA
whistleblower cases that have been appealed.  However, in their
comments on the report, OALJ officials said that they endeavor to
track the ultimate disposition of cases.  For ERA cases from fiscal
year 1990 to the present, OALJ reported that 20 cases had been
appealed to federal courts but did not indicate how many of the
appeals were initiated by the complainant and how many were initiated
by the respondent employer. 


      OFFICIALS QUESTION BASIS FOR
      SOME SECRETARIAL REVERSALS
      OF ALJ DECISIONS
---------------------------------------------------------- Letter :4.3

Some industry attorneys alleged that several secretarial reversals of
ALJ decisions occurred because of determinations of witness
credibility.  These counsels argued that proper judgments of
witnesses' credibility can be made only by personally seeing and
hearing the witnesses, not solely by reviewing the written record. 
Industry attorneys said that they believe the ALJs are in a better
position to determine the credibility of the witnesses because,
unlike the Secretary, they observed the demeanor of the witnesses and
participated directly in the proceedings.  The OALJ staff we
interviewed agreed with this position.  They also believe that the
written record of the case alone does not provide the ARB with a true
sense of what took place during the proceedings.  Our review of the
Secretary's decisions did not identify any cases in which Labor's
documentation showed witness credibility to be the primary reason for
a reversal.  However, ALJs and industry attorneys suggested that
credibility issues may have influenced the Secretary's reasoning for
several reversals. 

The Chair of the ARB acknowledged that the issue of credibility of
evidence had been discussed in the past and that some ALJs had raised
the same issues about being present during the proceedings with him. 
He recalled one case of a disagreement over expert witness testimony
but did not remember any other cases in which the credibility of
witnesses was the primary determinant in an ARB decision to reverse a
recommended ALJ decision. 


      OFFICIALS SAY LABOR'S
      RULINGS HAVE BROADENED
      EMPLOYEE PROTECTIONS
---------------------------------------------------------- Letter :4.4

Some industry officials believe that several of the Secretary of
Labor's decisions reversing ALJ recommendations have expanded the
definition of protected activities beyond what was intended in
section 211 of the ERA, with the result that the industry's ability
to manage and comply with NRC safety regulations has been curtailed. 
We have delineated some specific cases in which the Secretary of
Labor reversed ALJs' recommended decisions and in which industry
officials have viewed the reversals as significant because they
believe these rulings have considerably broadened the definition of
"protected activities." (See app.  IV for more extensive details on
these cases.)

  -- Robainas v.  Florida Power and Light.  In this case, the
     Secretary reversed the ALJ and found discrimination when an
     employee was ordered to take a psychological fitness-for-duty
     examination and was terminated for refusing to do so.  Industry
     managers said that they are concerned over the effect that
     ruling has on their ability to meet NRC requirements to safely
     manage their workforce without being subjected to section 211
     liability.  The industry believes that a more complete
     appreciation of NRC's fitness-for-duty regulation would have led
     the Secretary to understand that a referral, by itself, created
     no adverse consequences for the employee. 

  -- Hobby v.  Georgia Power.  In this case, the Secretary reversed
     the ALJ and held that the employee's raising concerns about a
     lack of cooperation between himself and a senior nuclear officer
     was "tantamount to" protected activity.  The Secretary ruled
     that management feared the consequences of a memorandum raising
     concerns about the reporting structure of nuclear operations and
     concluded that the complainant's position was eliminated to
     silence complaints about the company's reporting structure. 
     Officials said the ruling created a chilling effect on managers'
     supervisory behavior and ability to pursue legitimate
     downsizing. 

  -- Mosbaugh v.  Georgia Power.  In this case, the Secretary
     reversed the ALJ and permitted the long-term and surreptitious
     taping of fellow workers, NRC representatives, and management
     conversations in the plant, considering this taping to be a
     legitimately protected activity.  Managers said the ruling has
     had the effect of reducing open and frank discussion about
     technical and safety issues and limiting informal resolution of
     issues between managers and staff. 

  -- Saporito v.  Florida Power and Light.  In this case, the
     Secretary's decision gave an individual making an allegation the
     right to refuse to disclose safety concerns to the licensee and
     instead go directly to NRC with a safety allegation without
     first informing plant management.\13 The Secretary also found it
     permissible that the individual not go to the licensee even
     after he identified the safety concern to NRC.  Licensees
     believe this severely infringes on their ability to protect
     public health and safety if they are denied potentially
     important operational information.  Managers and industry
     attorneys view this as contrary to the entire intent of the
     section 211 process, which is geared to enhance the safety
     environment of nuclear facilities.  Attorneys also see it as
     being contrary to the experiences of other regulated industries,
     where whistleblower protections begin after all internal
     mechanisms to resolve a dispute have been unsuccessfully
     attempted. 

In response to this ruling, NRC's chairman wrote to Labor stating its
policy that an NRC contact by a person bringing an allegation should
be viewed as a last resort.  The letter emphasized that licensees are
primarily responsible for maintaining nuclear safety at their
facilities and that the licensees have a right to expect that their
employees will use internal mechanisms to inform them of safety
matters.  In a subsequent policy statement, NRC made clear its
expectation that while employees will normally raise safety concerns
to their employers, it does not mean that they cannot come directly
to NRC, and in fact they should come to NRC whenever they believe the
NRC should be aware of their concerns. 

  -- Finally, in Biddy v.  Alyeska Pipeline, industry legal
     representatives expressed concern about a ruling the Secretary
     made under the Toxic Substances Control Act (15 U.S.C.  2622). 
     This decision concerned parties providing the Secretary with
     details of all settlements of claims arising from the same
     factual circumstances forming the basis of the federal claim. 
     Industry representatives see the requirements of meeting this
     decision as possibly revealing information about licensees'
     business decisions to employees and their attorneys, who might
     then use it to gain unfair advantage in future proceedings. 
     They said that this might be a disincentive to settle cases. 

ARB officials strongly disagreed that their decisions had broadened
the protections beyond what the ERA statute had intended.  They said
that Labor rulings had not, in fact, expanded the list of activities
that could properly be classified as protected but, rather, the ALJs
had simply drawn upon legal precedents involving whistleblower cases
under other similarly worded statutes. 

ARB officials also said that they understand the difference in the
relationship between the nuclear industry and its regulator compared
with other industries but that that relationship does not and cannot
have any bearing on how Labor treats allegations of discrimination. 
ARB staff acknowledged, however, that they were not familiar with all
NRC's enforcement targeting approaches or potential enforcement
actions that NRC might take after an allegation has been raised and
investigated by Labor.  The Chair of the ARB said that he plans to
become more familiar with these actions in order to better understand
the nuclear industry's reactions to Labor's rulings. 

Industry officials also commented on the protected activities listed
under ERA and how they believe the Secretary of Labor has gone beyond
the activities cited in the statute or in regulations to broaden
whistleblower protections.  In one instance, officials said Labor's
broadening of protections has made certain occupations--for example,
security guards or quality assurance positions--themselves a
"protected" activity.  In these officials' views, simply by being in
one of the specific positions that Labor has interpreted as having to
do with safety, an individual would be covered by whistleblower
protections.  Under this reasoning, any changes to working conditions
management makes or personnel actions that management takes that
adversely affect employees in these occupations may be considered to
be harassment or intimidation.  No specific action related to
reporting a safety problem or issue need occur for an employee to be
protected through the whistleblower processes. 

The Chair of the ARB conceded that employees in certain job
classifications may engage in protected activity simply by doing
their jobs.  However, he noted that not only does a specific
protected act have to be found but also the employee must prove that
the adverse action was taken by the licensee because of that
protected act in order to support a ruling of discrimination. 


--------------------
\13 In comments on the draft report, NRC asserted that this
perception is incorrect; see app.  VI for NRC's comments. 


   ABUSE OF THE SYSTEM ALLEGED BUT
   NOT DOCUMENTED
------------------------------------------------------------ Letter :5

Many of the nuclear power officials we interviewed said that the
federal whistleblower protection system is plagued by abuse but that
only a relatively few individuals are responsible for such abuse. 
Industry members varied in their descriptions of abuse, but we
generally understood them to mean that someone was using the system
in ways that were not intended, such as to gain a financial or other
benefit that was not part of protecting employees' rights to raise
safety concerns.  However, the industry did not define abuse
uniformly and did not compile data to indicate either its character
or extent. 

We could not obtain data to adequately quantify or characterize abuse
for individual plants or from the NEI on the industry as a whole. 
Industry representatives told us that it is unlikely that data on
abuse of the system would ever be collected.  They said that each
case is unique and licensees make individual determinations and
business decisions to resolve them.  Likewise, data on settlements at
all levels are not systematically collected and maintained by
industry, Labor, or NRC.  Industry representatives told us that in
recent years licensees have been more prone to settle whistleblower
cases than they had been in the past and that they are more likely to
settle cases within the plant or at least early in the process than
they are to wait until the latter stages of the formal federal
processes. 


      FEDERAL PROCESSES ARE
      BELIEVED TO BE USED TO
      RESOLVE NONSAFETY ISSUES
---------------------------------------------------------- Letter :5.1

Officials told us that many of the whistleblower complaints have been
about concerns other than safety issues.  They emphasized, however,
that industry's concern with the fairness and efficiency of the
current process does not reflect any disagreement with the policy
underlying the federal whistleblower protection system.  Officials
state that they believe that employees play an important role in
raising safety concerns and fully support the need to encourage
employees to identify safety concerns and the existence of a
mechanism to respond to instances in which employees are
discriminated against for raising such concerns.  However, officials
said they believe that some whistleblowers use protected status to
insulate themselves from normal management personnel actions, such as
negative performance evaluations, reassignments, or layoffs.  Some
officials said that employees use the process to obtain leverage in
dealing with managers to obtain buyouts, settlements, or early
retirements.  Some told us the process is used as a forum to resolve
various human resources or personnel disagreements that should be
resolved by other means.  In one example, a licensee told us that an
individual was filing an allegation because of what he saw as an
unfair distribution of funds between management and labor in a
profit-sharing plan.  Some officials have also alleged that employees
go from employer to employer and raise frivolous allegations purely
to seek financial settlements. 

NRC recognizes that some potential exists for individuals to "use the
system." However, NRC officials do not accept the argument that a
person who engages in protected activity is immune from discipline,
discharge, or other action.  NRC and Labor officials told us that
they believe that properly documented cases of nondiscriminatory
adverse actions taken by the employer can be reviewed in the current
protection system and the employer can be found to have acted without
discrimination. 


      INDUSTRY SEES DIFFERENT
      CHARACTERIZATIONS OF
      WHISTLEBLOWERS
---------------------------------------------------------- Letter :5.2

While the federal processes protect employees who go outside the
plant to NRC, Labor, or the public to raise safety concerns as
"whistleblowers," many industry officials do not view all
whistleblowers alike.  Some managers and attorneys informally
classified whistleblowers--employees and contractors--into four
categories.  NRC and Labor officials did not directly comment on
these characterizations. 

1.  True believers--employees generally perceived to be competent and
loyal who have raised what they see to be a serious safety issue and
who are not satisfied that management has responded adequately to the
issue or believe management has resolved it incorrectly or
incompletely.  These employees are willing to risk their careers to
ensure that the issue or professional disagreement is dealt with
properly and completely. 

2.  Employees with personal or personality problems--employees in
conflict with one or more members of management over issues that are
related to safety but that also involve personality clashes or
reflect personality problems on the part of the employee.  Managers
said that the whistleblowers in this category have somewhat
traditional supervisor/employee conflict issues often related more to
"personality" issues than to the safety issue cited or have problems
dealing with people.  Employees in this group bring their issue to
the whistleblower process because they know that it will receive
attention by high-level management at the facility and by outside
parties--namely, NRC and Labor.  Industry officials said employees in
this group often use other venues, including equal employment
opportunity complaints, state courts, or grievances filed with a
union, in attempting to resolve their issues while they pursue
whistleblower allegations. 

3.  "Insurance policy" writers--employees viewed by managers as
filing a safety issue as a placeholder to insulate them against
adverse management decisions, as, for example, an unfavorable
performance review, premature separation, or downsizing.  Officials
view employees in this group as using whistleblower protection to
shelter them from economic and business decisions that may minimize
or threaten their employment at a facility.  Managers cited instances
in which contractors brought in for plant refueling operations have
employed the allegation process, or the threat of its use, as a way
to extend their employment for the maximum duration.  Other examples
cited included persons who fear downsizing decisions contemplated by
a nuclear facility and who raise an allegation as a way of possibly
protecting themselves from layoffs. 

4.  "Entrepreneurs"--employees who use the federal processes or the
threat of filing a complaint as a way to hold the company hostage and
achieve some monetary settlement in exchange for dropping, or not
filing, a harassment or discrimination charge.  According to the
officials, these employees may file multiple claims against the same
facility or several employers, or look to negotiate some other
benefit, such as an early retirement, buyout, or other payoff as a
way to pressure their employer. 

Although different officials offered variations on the number and
size of whistleblower categories, most industry officials believed
that the number of true safety issues raised by whistleblowers was
small.  However, industry officials stated that despite the fact that
they believed that most of the safety issues raised by whistleblowers
did not reflect major safety issues, the industry recognized that
each concern must be treated as though it, in fact, did represent
such a safety issue.  Industry representatives we spoke to saw the
last three categories of whistleblowers as being responsible for the
majority of the whistleblower allegation activity. 

Industry officials told us that experience led them to expect
discrimination complaints to increase during periods of uncertainty,
job reassignments, and particularly downsizings.  Officials stated
that historically, during transition periods, such as moving from the
construction phase to starting full operation or during refueling and
maintenance shutdowns, significant numbers of safety allegations and
whistleblower allegations occurred.  They predicted these cyclical
allegations would continue.  Some officials also said that as the
industry continues to respond to economic pressures of deregulation
and competition, and with the possible closing down of some nuclear
plants when their original licenses expire, the number of safety
concerns and whistleblower complaints probably would increase. 

NRC and Labor officials were aware of the various characterizations
of whistleblowers, but officials at both agencies said that a
whistleblower's reason for raising an allegation was irrelevant to
them.  NRC said that its policy is that the motive of a person making
an allegation does not alter the validity of the allegation and
should not change the way in which NRC or a licensee follows up on a
concern.  Labor officials and ALJs said that the motivation of the
nuclear whistleblower did not have, and should not have, any effect
on deliberations over the allegations made. 

In responding to industry's observation that many safety issues
raised in the protection process were relatively minor, NRC officials
acknowledged that most allegations were not "show stoppers." However,
they noted that if they failed to deal with the minor issues, they
would be discouraging the raising of larger issues.  NRC officials
also expressed concern that employees who feel inhibited about
raising concerns may take more indirect methods of raising concerns,
thus delaying resolution of the issue and requiring additional
licensee and NRC resources. 


      INDUSTRY SUGGESTIONS FOR
      IMPROVING THE WHISTLEBLOWER
      PROTECTION SYSTEM
---------------------------------------------------------- Letter :5.3

Industry officials made a number of suggestions to improve the
federal whistleblower protection system.  Although they raised many
issues about the current processes, none advocated major structural
changes.  Most of the managers and the legal representatives we
interviewed said they were willing to work within the present system
if they had to and viewed these processes as a cost of doing
business.  Generally, they said that the most negative aspects of the
whistleblower protection processes arose when failure to resolve
issues internally led to media attention and active NRC intervention. 
Some managers and legal representatives suggested that NRC should
return to its previous policy of withholding taking action on a
section 211 claim (other than to ensure that the underlying safety
issue raised is evaluated and addressed) until the Labor process has
been completed.  The industry officials did not suggest that NRC be
relieved of any of its responsibility for protecting public safety
and health but expressed the view that restricting NRC's actions
related to a discrimination claim until the completion of Labor's
activities would not affect its obligations. 

Suggestions for improvement included limiting the time for actions
and decisions at all levels of NRC and Labor and employing sanctions
against employees who pursue frivolous allegations beyond the initial
stages.  They also suggested that NRC clearly define what constitutes
"protected activities" in a nuclear power plant.  Industry officials
suggested as well that both NRC and Labor should encourage the use of
companies' internal management processes to resolve whistleblower
discrimination allegations quickly. 

Officials object to NRC's proposed policy of using the number of
settlements as an indicator of the level of safety consciousness at a
plant or NRC's perceived assumption that a plant management's
settling cases indicates that a pattern of harassment and
intimidation may exist at its facility.  Finally, the officials said
that NRC and Labor should eliminate any real or perceived obstacles
to settling cases. 

Industry officials support Labor's making available more ADR options,
particularly when the whistleblower allegations do not involve
significant safety issues.  Appendix V contains information on a
pilot program that Labor is considering for the use of ADR in
whistleblower cases.  Labor currently offers settlement judges for
the adjudication of whistleblower claims, but this option is not
often used.\14 Industry representatives did not express any
reservations about using settlement judges to resolve these
complaints.  They said that the process simply is not well known
across the industry and that few have had experience with it. 

NRC is strongly supportive of Labor's employing ADR in cases brought
under section 211 of ERA.  In an April 15, 1997, letter to Labor, NRC
stated that it believes that ADR will decrease reliance on formal
adjudication and that ADR will serve the interests of the parties in
obtaining prompt resolution of their claims as well as the interests
of the federal government in conserving resources. 


--------------------
\14 From July 1996 to July 1997, 10 ERA cases were referred to
settlement judges.  Nine of the cases were settled with the help of a
settlement judge; one case was still pending while this report was
being drafted. 


   AGENCY COMMENTS AND OUR
   EVALUATION
------------------------------------------------------------ Letter :6

NRC provided written comments on the draft report.  In those
comments, NRC's Executive Director for Operations disagreed with
several of the positions taken by industry and discussed in our
report.  NRC also stated that its current regulations and policies
support the goals of protecting workers from discrimination and
maintaining plant safety.  NRC staff also provided technical comments
that clarified certain NRC policies and positions discussed in the
draft report.  We have revised our report in several places to
incorporate comments made both formally and informally.  NRC's
comments appear in appendix VI. 

We did not receive comments from the Secretary of Labor on our draft
report.  The Chair of the ARB and Labor's Chief Administrative Law
Judge did, however, provide comments that updated and clarified a
number of technical issues raised in the report.  Generally, neither
ARB nor OALJ took issue with most of the industry positions raised in
the report.  The Chair of ARB declined to comment on the merits of
specific decisions but encouraged any party who believes a final
decision by ARB is contrary to law or unsupported by fact to exercise
his or her right to appeal that decision.  In his comments on the
report, Labor's Chief Judge pointed out that while nuclear and
environmental whistleblower cases are governed by the same procedural
regulations and that legal precedents apply to both types of cases,
administrative law judges are keenly aware that ERA whistleblower
cases arise in a factual context that is distinct from environmental
whistleblower cases.  Given their formal and technical comments, we
have modified portions of the report and included references to their
comments in several places.  ARB comments appear in appendix VII. 
OALJ comments appear in appendix VIII. 

NEI provided technical comments and clarifications to its positions
on several issues.  Many of these have also been incorporated in the
report.  NEI was also interested in ensuring that it communicated its
concern that discussions about the problems with the whistleblower
protection processes should not overshadow the successful safety
culture that has been achieved in the nuclear power industry today. 
NEI was also concerned about the role of NRC in whistleblower
processes and what it viewed as an imbalance between NRC's regulatory
emphasis on whistleblower protection and the amount of benefit to the
industry.  NEI did not provide written comments for publication. 


---------------------------------------------------------- Letter :6.1

As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 7 days
after its issue date.  At that time, we will send copies to the
Secretary of Labor, the Chairman of NRC, and interested congressional
committees.  We will also make copies available to industry licensees
and NEI and to others upon request. 

If you have questions about this report, please call me on (202)
512-7014.  Major contributors to this report are listed in appendix
IX. 

Sincerely yours,

Carlotta C.  Joyner
Director, Education and
 Employment Issues


SCOPE AND METHODOLOGY
=========================================================== Appendix I

To understand the processes and the legal protection afforded nuclear
power industry employees who claim they have been discriminated
against for raising safety concerns, we reviewed the whistleblower
protection provisions of the 1974 Energy Reorganization Act (ERA) as
amended, the Energy Policy Act, and the Atomic Energy Act of 1954. 
We also examined the legislative histories of these laws.  We
examined federal regulations relating to the Department of Labor's
handling of employee complaints under ERA and the Nuclear Regulatory
Commission's (NRC) protection of nuclear power employees from
discrimination.  We also examined the relevant sections of NRC's and
Labor's procedure manuals and management directives. 

To determine the effect of Labor's rulings on industry's ability to
manage its workforce, we reviewed ERA cases from January 1979 to
March 1997.  Because of industry concerns with recent rulings from
the Secretary of Labor and Labor's Administrative Review Board (ARB),
we reviewed rulings from January 1994 to March 1997 and asked Labor
to provide summary tables of those rulings.  We discussed the
rulings, provisions of these laws, and various regulations with NRC
officials and with officials in Labor's ARB and Office of
Administrative Law Judges (OALJ). 

In addition, we discussed with knowledgeable industry representatives
the protection of nuclear employees who have raised safety concerns
and potential for abuse of the whistleblower protection system.  To
obtain the perspective of licensees, we visited representatives of 15
electrical utility companies that account for 52 of the nation's 110
civilian nuclear generating units.  We interviewed managers who had
dealt with discrimination complaints involving both NRC and Labor and
with attorneys who have represented employees and licensees in
whistleblower cases.  We also met with officials of the Nuclear
Energy Institute (NEI), a nuclear power industry association whose
members include the top officials of utility companies operating
nuclear plants, and we spoke with other industry legal
representatives and industry groups. 

Since we were focused on the industry's perspective on federal
processes and rulings, we did not attempt to determine the merits of
particular cases other than to review the potential effect of
specific rulings on industry safety.  We did not meet with
individuals who made allegations to discuss their treatment or their
particular case histories.  We did not attempt to establish the
appropriateness of NRC's response to particular rulings or their
allocation of resources for whistleblower protection activities. 

We performed our work between September 1996 and June 1997 in
accordance with generally accepted government auditing standards. 


INDUSTRY SITES REPRESENTED BY
OFFICIALS WE INTERVIEWED
========================================================== Appendix II

Arizona Public Service Co.
Baltimore Gas and Electric Co.
Commonwealth Edison Co.
Detroit Edison Co.
Florida Power and Light Co.
Georgia Power Co.
Houston Lighting and Power Co.
Northeast Nuclear Energy Co.
Pennsylvania Power and Light Co.
Southern California Edison
Southern Nuclear Operating Co.
Tennessee Valley Authority
Texas Utilities Electric Co.
Virginia Electric and Power Co.
Yankee Industries


SECRETARY OF LABOR AND ARB
DECISIONS, JANUARY 1994-MARCH 1997
========================================================= Appendix III

Whistleblower cases are initially investigated by Labor's
Occupational Safety and Health Administration (OSHA) field staff.  If
either party to the complaint does not agree with OSHA's decision,
the case may be appealed to Labor's OALJ and the appeal is heard by
an administrative law judge (ALJ).  The ALJ makes a recommended
decision to the Secretary of Labor.  The Secretary may accept,
reject, or modify the recommended decision.  Since April 17, 1996,
Labor's ARB has acted for the Secretary in issuing final decisions on
questions of law and fact arising in review or on appeal of
whistleblower cases. 

Industry representatives expressed concern about the number of
nuclear whistleblower cases in which the Secretary or the ARB had
reversed the decision of the ALJ.  Table III.1 shows Labor's
compilation of Secretary of Labor/ARB rulings in ERA whistleblower
cases for January 1994 through March 1997. 



                              Table III.1
                
                 Secretary of Labor and ARB Rulings on
                ERA Cases Decided on the Merits, January
                            1994-March 1997

Secretary's/ARB's                             1997
decision in ERA                              (Jan-
cases\a               1994    1995    1996   Mar.)        Total
------------------  ------  ------  ------  ------  ==================
ALJ recommendation      12      17       8       2          39
 affirmed
ALJ recommendation       2       6       3       0          11
 reversed in
 employee's favor
ALJ recommendation       0       1       0       0          1
 reversed in
 licensee's favor
Total                   14      24      11       2         51\b
----------------------------------------------------------------------
\a The ARB does not maintain an audit trail of individual cases at
each level of review. 

\b Of the 51 cases, at the ALJ level the licensee won 44 and the
employee won 7. 

Source:  Department of Labor, ARB. 


DEPARTMENT OF LABOR WHISTLEBLOWER
RULINGS THAT CONCERN NUCLEAR
INDUSTRY MANAGEMENT
========================================================== Appendix IV

Case and                                        Management      Effect
summary of      Discrimination  Labor           response to     management
issue           alleged         disposition     ruling          perceives
--------------  --------------  --------------  --------------  ----------------
Robainas v. Florida Power and Light
--------------------------------------------------------------------------------
Whether a       Harassment,     ALJ             Managers may    Potentially
utility         false           recommended     delay or        unstable staff
company's       performance     that complaint  refuse to       may be left in
order to have   evaluations,    be dismissed    order a         positions in
one employee    illegal         because of      psychological   which they could
undergo         fitness-for-    failure to      examination.    endanger plant
psychological   duty            meet burden of                  safety.
fitness-for-    evaluation,     proof.
duty            and unlawful    Secretary
evaluation      discharge.      reversed and
qualifies as                    ordered
discrimination                  reinstatement
under ERA.                      with back pay
                                with interest,
                                costs,
                                expenses, and
                                attorney's
                                fees. Remanded
                                to ALJ for
                                proceedings to
                                determine
                                complete
                                remedy.


Hobby v. Georgia Power
--------------------------------------------------------------------------------
Whether         Company         ALJ             Managers may    Staff may refuse
employee's      eliminated job  recommended     delay or        to obey
purely          of the person   dismissal of    refuse to take  justifiable
internal        making          entire          adverse         management
memorandum      allegation,     complaint.      actions         orders. Other
raising         required him    Secretary       against         staff may be
concerns that   to turn in his  remanded case   employees.      required to
company's       employee badge  to ALJ to                       carry out these
reporting       and gate        determine                       orders.
structure may   opener to       complete
not be in       executive       remedy.
compliance      garage,
with its NRC    limited his
license or      access within
regulations     the building,
constitutes     and gave him a
protected       lesser office.
activity under
ERA.


Saporito v. Florida Power and Light
--------------------------------------------------------------------------------
Whether         Employer        ALJ             Management's    Plant may not be
employees may   disciplined,    recommended     efforts to      as safe while an
refuse to       harassed, and   denying         ensure safety   outside party
discuss their   discharged      complaint.      are delayed     verifies
safety          employee.       Secretary       because         existence of a
concerns with                   remanded case   employees'      safety problem
management and                  to ALJ to       right to        and informs
go directly to                  determine       refuse to       plant
NRC.                            whether         bring safety    management.
                                discharge for   concerns to
                                "unprotected"   management
                                activities was  leaves
                                supportable by  management
                                the record      uninformed.
                                given the
                                mixed motives.


Mosbaugh v. Georgia Power
--------------------------------------------------------------------------------
Whether         Employer        ALJ             Managers        Constrained
surreptitious   downgraded      recommended     believe free    communication
electronic      performance     dismissal of    and open        and a
recording, by   evaluation,     complaint.      exchange of     potentially less
person making   removed         Secretary       information is  safe plant
an allegation,  company car,    rejected ALJ's  inhibited.      during the time
of              and suspended   recommendation  Trust           the taping goes
conversations   and later       and found that  necessary to    on and the time
that supported  discharged      discharge       maintaining     when NRC informs
complaints to   employee.       violated ERA.   plant safety    the management
NRC                             Ordered         is eroded       of the plant of
constituted                     reinstatement   because         its concern.
protected                       with back pay.  employees'
activity under                                  right to
the ERA.                                        secretly tape
                                                conversations
                                                causes
                                                managers and
                                                staff to hold
                                                back, thereby
                                                reducing open
                                                communication.


Biddy v. Alyeska Pipeline
--------------------------------------------------------------------------------
ARB requires    Although not    ALJ             Managers and    Managers may be
parties         an ERA issue,   recommended     legal           less likely to
requesting      this            decision        representative  use the
approval of     whistleblower   requiring that  s fear that     settlement
settlements to  decision is     information on  (1) employees   approach--and
provide         being applied   all parties'    who wish to     company is thus
settlement      to ERA cases    settlements     "hold up" the   deprived of a
documentation   and concerns    related to the  company for     legitimate tool
for any other   industry. Case  same facts be   money and (2)   of negotiations
claims arising  was brought     submitted to    competitors     that could ease
from the same   under Toxic     Labor in order  who might       conflict and
factual         Substances      for federal     profit from     save time and
circumstances   Control Act,    settlement to   proprietary     money.
forming basis   Federal Water   be approved.    information
of federal      Pollution                       will gain
claim or        Control Act,                    unfair
certification   Clean Air Act,                  advantage if
that no other   and Solid                       they can
settlement      Waste Disposal                  readily see
agreements      Act.                            details of
were entered                                    case
into by the                                     settlements.
parties.
--------------------------------------------------------------------------------

DEPARTMENT OF LABOR PILOT
PROCESSES FOR ADR USE
=========================================================== Appendix V


   LABOR'S ALTERNATIVE DISPUTE
   RESOLUTION PILOT PROGRAM TO
   INCLUDE ERA CASES
--------------------------------------------------------- Appendix V:1

On February 12, 1997, Labor published a proposed rule in the Federal
Register (vol.  62, no.  29, pp.  6689-95) entitled "Expanded Use of
Alternative Dispute Resolution in Programs Administered by the
Department of Labor." This proposal requested public comments on the
use of ADR in a proposed pilot project test of voluntary mediation or
arbitration in six categories of cases that OALJ adjudicates.  One
category included environmental whistleblower cases under employee
protection provisions of the 1974 ERA, which covers whistleblowers in
the nuclear industry. 

Labor plans to proceed with a pilot test to help determine whether
private, voluntary mediation or arbitration can (1) resolve disputes
more quickly and more efficiently than conventional litigation, (2)
produce resolutions that satisfy the parties and Labor, and (3) use
the enforcement and litigation resources of Labor more effectively. 
The primary potential benefits of using ADR are lower litigation
costs to both parties and, for government agencies, the ability to
resolve more cases with the same resources. 

Labor's proposed pilot test will be limited to six types of cases,
selected because they present promising opportunities for the
effective use of voluntary ADR:  (1) discrimination cases involving
environmental whistleblower cases under the employee-protection
provisions of ERA and six other environmental safety and health
statutes, (2) cases under section 11(c) of the Occupational Safety
and Health Act (29 U.S.C.  660(c)), (3) cases under the Family and
Medical Leave Act of 1993 (29 U.S.C.  2601 et seq.), (4) cases under
the Fair Labor Standards Act of 1938 (29 U.S.C.  201 et seq.), (5)
compliance review cases under Executive Order 11246, and (6)
complaint investigation cases under the Vietnam Era Veterans'
Readjustment Assistance Act (38 U.S.C.  4212).  The results of the
proposed pilot test will guide Labor in future ADR initiatives,
including the possible expansion of voluntary mediation or
arbitration to other types of cases. 

During the 1990s, Labor has received an annual average of about 90
environmental whistleblower complaints.  The Department's OALJ
conducts about 80 hearings each year in this type of case, resulting
in 30 to 40 final ARB decisions.  In the past, there have been
significant delays in the administrative adjudication process.  Most
recently, cases have been adjudicated or resolved more promptly. 

Under the proposed pilot test, after an employee's complaint has been
investigated, Labor would determine whether the case is suitable for
ADR.  If ADR is appropriate, Labor would offer the employer and the
employee the option of mediation, arbitration, or both, conducted
either by a settlement judge in OALJ or by a private mediator or
arbitrator.  Labor would not be a party to or participate in any
mediation or arbitration. 

Under the proposal, the ARB would not be bound by any resolution
reached by the parties but would review the results of mediation or
arbitration.  If appropriate, using the same standard now applied in
the ARB's review of other environmental whistleblower settlements
between employees and employers, the parties' mediated settlement or
the arbitrator's decision would be included in a final ARB order. 
Labor would revise or supplement its existing regulations for
environmental whistleblower cases (29 C.F.R.  part 24), as necessary,
to incorporate these procedures. 


   LABOR OFFERS USE OF SETTLEMENT
   JUDGES IN CURRENT CASES
--------------------------------------------------------- Appendix V:2

Labor currently offers the use of settlement judges to resolve
whistleblower cases in a less time-consuming and costly manner than a
full ALJ appeal process.  In these cases, specially selected ALJs
hear evidence from both parties and attempt to help them reach a
settlement.  If settlement attempts are unsatisfactory to either
party for any reason, the case goes back to the formal OALJ process
for a full hearing.  Labor's procedures for the use of the settlement
judge process have been available for several years, but relatively
few cases have been adjudicated this way. 




(See figure in printed edition.)Appendix VI
COMMENTS FROM THE NUCLEAR
REGULATORY COMMISSION AND OUR
EVALUATION
=========================================================== Appendix V

end of this appendix. 



(See figure in printed edition.)

See comments 1 and 2. 

See comment 3. 

See comment 1. 

See comment 1. 

See comment 4. 



(See figure in printed edition.)

See comment 1. 

See comments 5 and 6. 

See comment 1. 

See comment 7. 

See comment 1. 


The following are GAO's comments on the Nuclear Regulatory
Commission's letter dated August 6, 1997. 


   GAO COMMENTS
--------------------------------------------------------- Appendix V:3

1.  Wording revised. 

2.  See footnote 13. 

3.  Comment not incorporated.  In the 21 cases closed for
administrative reasons, discrimination was not substantiated. 

4.  See footnote 8. 

5.  Comment not fully incorporated. 

6.  See footnote 10. 

7.  Comment not incorporated.  The ARB Chair clarified remarks
attributed to him concerning occupational groups and adverse actions. 




(See figure in printed edition.)Appendix VII
COMMENTS FROM THE ADMINISTRATIVE
REVIEW BOARD, DEPARTMENT OF LABOR
=========================================================== Appendix V




(See figure in printed edition.)Appendix VIII
COMMENTS FROM THE OFFICE OF
ADMINISTRATIVE LAW JUDGES,
DEPARTMENT OF LABOR
=========================================================== Appendix V



(See figure in printed edition.)


GAO CONTACTS AND STAFF
ACKNOWLEDGMENTS
========================================================== Appendix IX

GAO CONTACTS

Larry Horinko, Assistant Director, (202) 512-7001
George Erhart, Senior Economist, (202) 512-7026

STAFF ACKNOWLEDGMENTS

In addition, the following individuals made important contributions
to this report:  Edward C.  Shepherd and Richard Kelley gathered and
analyzed essential information and drafted sections of the report. 
Jonathan Barker of the Office of General Counsel assisted in
gathering information and provided legal assistance, and Philip Olson
provided technical advice concerning NRC activities. 


*** End of document. ***